Divided 4 to 2, the state Supreme Judicial Court upheld the state Energy Facilities Siting Board’s green light for Cape Wind’s Nantucket Sound wind farm. Writing for the majority, Associate Justice Margot Botsford rejected claims by the Alliance to Protect Nantucket Sound, the Cape Cod Commission, and the Town of Barnstable, among others, that the state agency exceeded its authority in its actions on the project, including the grant of a comprehensive permit that overrode local and regional authorities. Chief Justice Margaret Marshall was joined by Associate Justice Francis Spina in her dissent. The seventh justice, Judith Cowin, had recused herself from the case. The majority shot down every argument proposed by the petitioners. The justices found that the Commission’s later creation did not exempt it from the authority of the siting board, and that the board’s sway over local government agencies applied to the regional Commission as an agency of county government. The most contentious point raised for the court was the argument the siting board could not “stand in” for other agencies to grant a certificate for use of public trust lands, in this case tidelands. Botsford wrote that the court found “an express legislative directive to the siting board to stand in the shoes of any and all State and local agencies with permitting authority over a proposed ‘facility’ – that is a directive to assume all the powers and obligations of such an agency with respect to the decision whether to grant the authorization that is within the agency’s jurisdiction, with regulatory enforcement thereafter returned to that agency.” That prompted a rebuke from Marshall: “The siting board, however, does not have, and was not intended by the Legislature to have, the right to act as fiduciary on behalf of the people with regard to Commonwealth tidelands or to approve energy projects up and down the coastline of Massachusetts in Commonwealth tidelands.” Marshall wrote that the ruling “establishes a dangerous and unwise precedent, which has far-reaching consequences. A wind farm today may be a drilling rig or nuclear power plant tomorrow.” The majority upheld the siting board’s decision not to consider the in-state impacts of the turbine array itself and to limit its review to the transmission lines in state waters and on land. Botsford wrote that the board’s statute requires it to look at the “facility,” which she described as the transmission lines. She agreed with the board that “the wind farm itself will be within Federal jurisdiction, and Federal jurisdiction in this area is paramount.” The associate justice wrote that the law does not allow an agency “to do indirectly what it cannot do directly.” Marshall disputed that. “Centuries of legislation and jurisprudence concerning the paramount rights of the people of the Commonwealth to the use of the sea and shore lead me to disagree,” she wrote. “The stakes are high. As we have recently seen in the Gulf of Mexico, the failure to take into account in-State consequences of federally authorized energy projects in Federal waters can have catastrophic effects on State tidelands and coastal areas, and on all who depend on them.”

The Parties React

"This important decision brings Cape Wind's benefits of hundreds of new jobs, greater energy independence and a healthier environment that much closer to the people of Massachusetts,” Cape Wind Communications Director mark Rodgers stated in a press release. “The court was right to say no to the delay tactics of the oil- and coal-funded opposition group which brought this lawsuit." An attorney for Clean Power Now, which supports the project, echoed that argument. “Today’s decision by the state high court is the latest in a long series of legal decisions rejecting the argument of an opposition group, funded largely by donors who have made their fortunes in the coal and oil industries, that has sought to kill this vital clean energy project,” Matthew Pawa stated in a press release. “It is time for the opponents of this project to stop filing frivolous legal challenges and for construction to commence.” Two parties to those challenges, which continue in actions against the U.S. Department of the Interior, showed no signs of stopping. The Town of Barnstable stated in a release that it “has always been concerned that the process of approving the project, while ignoring the potential for devastating in-state environmental impacts that the project may cause, does not serve the public interest.” The Alliance to Protect Nantucket Sound called the decision “an outrageous violation of community rights. The court has trampled the ability of residents of every city and town in Massachusetts to make their own decisions regarding large industrial projects, by granting the EFSB the ability to overrule community objections.” Indicating its belief that there were still hurdles for the project to clear, the Alliance said that “no public utility has yet to step forward to buy the other half of Cape Wind’s power and numerous lawsuits have been filed against the federal government by fishermen, municipalities, the Alliance and various other environmental groups.”

More court time for Cape Wind On another legal front, Cape Wind has asked to be added as a defendant in the multiple appeals filed against U.S. Secretary of the Interior Ken Salazar's decision allowing the 130-turbine wind farm to be built in Nantucket Sound. According to on-line records for the District of Columbia District Court, Cape Wind has been added to the Town of Barnstable's appeal, but the court has yet to act on the request in the two remaining appeals. “Joining the appeals as a defendant allows us to make the case ourselves that the government has properly applied the laws,” Cape Wind spokesman Mark Rodgers said in an e-mail exchange, “and to exercise all the rights of a party as if we had been sued alongside the government in the first place." Rodgers added that it also "makes available to the court our project expertise." Last week, the court extended the timeline for the Department of the Interior and other defendants to formally answer the appeals to Sept. 29.

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